Last Friday (14 March 2014), in a unanimous decision, the Full Court of the Federal Court of Australia ruled that the Australian Communications and Media Authority (ACMA) had no power to determine that Today FM (Sydney) Pty Ltd (Today FM) had committed a criminal offence and therefore breached a standard condition of its commercial radio broadcast licence under the Broadcasting Services Act 1992 (Cth) (BSA).
The Full Court’s decision (Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority  FCAFC 22) overturns the decision at first instance in which the Federal Court ruled in the ACMA’s favour, and affirms the proposition that the determination of whether a criminal offence has been committed can generally only be conducted by Courts exercising criminal jurisdiction (and not by bodies exercising administrative or executive power). This general proposition informed the Full Court’s statutory interpretation of the BSA, which led to the conclusion that the ACMA did not have the power to make its impugned decision before any finding of the appellant’s guilt by a criminal court.
The case concerned the recording by Today FM of a phone call between two presenters of Today FM’s “Summer 30” radio program, posing as Queen Elizabeth II and Prince Charles, and two staff at King Edward VII hospital in the United Kingdom, where the Duchess of Cambridge was then an in-patient. On the same day, the recording was subsequently broadcast by Today FM during its “Summer 30” program (Segment).
Under its statutory power to commence an investigation under section 170 of the BSA in respect of the broadcast of the Segment, the ACMA notified Today FM that it would investigate whether the broadcast of the Segment breached clause 8(1)(g) of Part 4 of Schedule 2 of the BSA (Clause 8(1)(g) licence condition), which provides:
"...the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory."
On 4 June 2013, Today FM received the ACMA’s Preliminary Investigation Report which made an initial finding that in broadcasting the Segment, Today FM had used its broadcasting services in contravention of section 11(1) of the Surveillance Devices Act 2007 (NSW) (SDA) and had therefore breached the Clause 8(1)(g) licence condition.
Shortly after, Today FM commenced proceedings in the Federal Court, seeking declarations, and interlocutory and final injunctive relief to restrain the ACMA from making any determination that a crime had been committed under the SDA.?The primary judge ruled in favour of the ACMA, concluding that the finding in the ACMA’s report was merely an administrative opinion, as distinct from a binding determination of criminal guilt. A final investigation report was prepared by the ACMA and provided to Today FM shortly prior to the hearing of the appeal, which made a determination that Today FM had contravened section 11(1) of the SDA.
The Full Court conducted an in-depth consideration of the text of the relevant sections of the BSA. In doing so, it was found that the primary judge had erred in his construction of the clause 8(1)(g) licence condition. In overturning the first instance judgment, the Full Court relied on the well established principle that, in engaging in the task of statutory construction, Courts must first and foremost consider the statutory text to deduce meaning.
The Full Court found that, on its proper construction, the Clause 8(1)(g) licence condition is comprised of two parts:
(i) whether the licensee has committed a criminal offence against another Commonwealth or State Act; and
(ii) whether the licensee has used its broadcasting service in the committing the offence.
While it was found that the ACMA is equipped to make a determination regarding part (ii) of the clause 8(1)(g) licence condition, the Full Court held that in relation to part (i), the determination of whether or not a criminal offence has been committed can generally only be determined by a Court exercising criminal jurisdiction. Given the absence of any clear legislative text indicating that the ACMA was empowered to make a determination of criminal guilt prior to a competent Court doing so, it was held that the ACMA is not empowered to make such a finding or express such an opinion. The ACMA’s determination that Today FM had breached the clause 8(1)(g) licence condition has accordingly been set aside.
This decision is important as it confirms the principle that the determination of criminal guilt should generally be left to the purview of Courts with criminal jurisdiction. Additionally, it highlights the importance of construing statute by giving primacy to the legislative text.
The decision is of particular significance to the media industry, as it places a limitation on the investigative and regulatory powers of the ACMA, which has in previous investigations asserted that, as an administrative body, it has the power to form an opinion (on the balance of probabilities) that a licensee has committed an offence and has therefore breached the clause 8(1)(g) licence condition.
Ian Robertson, Partner
Media, Entertainment & Communications
P: +61 2 8083 0401
Greg Wrobel, Partner
Dispute Resolution & Litigation
P: +61 2 8083 0411
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